Pain? Suffering? Money for your life

Not to put too fine a point on it, but how much is your pain and suffering worth?

After Laura Small was mauled by a mountain lion in Caspers Wilderness Park in 1986, a jury decided in 1991 that her physical injuries, plus the emotional damages to Laura and her mother, were worth more than $2 million. Eventually, Orange County paid $1.6 million.

In 2002, a Department of Defense employee ran a red light in Costa Mesa and broadsided a car carrying Leilani Gutierrez and her mother June. Leilani, 4, emerged from a coma as a quadriplegic dependent upon a ventilator. A jury decided Leilani should receive about $23 million for medical care and $31 million in damages. The judgment was upheld this summer.

Certainly, victims deserve compensation. Calculating the amount of medical expenses or lost wages is straightforward mathematics — but how much do you charge for the trauma of having your head inside the jaw of a cougar or never being able to walk again?

How do you put a price tag on misery?

Orange County personal injury attorney Wylie Aitken of Aitken, Aitken and Cohn represented the plaintiffs in both those cases. So I asked him: how do you set the price point for suffering?

Aitken reminds me, first, that jury members decide. The court instructions state that you don't have to suffer financially in order to be compensated for harm. The law leaves it up to the discretion of the jury so long as it's "an amount as a reasonable person would estimate as fair compensation."

That's not much help.

Just because it's difficult to assess how badly people have been damaged, Aitken says, is no reason to give them nothing. He explains in Leilani's case how he reasoned she would suffer over her lifetime:

"She has the ability to understand what she is going though. All the phases of her life she will watch everyone else experience what she most likely cannot."

He adds: "We place this much value on keeping her alive, but some people would say: isn't her loss in quality of life at least equal to that?"

He asked the jury to help make Leilani's life as comfortable as possible, knowing that it will never be the same. What would you pay, he asked them, for the absence of pain?

Aitken clarifies: he asks juries for "empathy," not "sympathy."

"Empathy means that you understand what they are going through. We don't want sympathy, which means that you feel sorry for them so you want to give them something."

Aitken says that most juries are conservative, frequently awarding less than they are asked.

Why award anything at all? When some of these cases hit the news, the claims seem exaggerated.

Aitken points out that before you can sue a government agency, you have to file a claim. The law requires this claim to include an amount for damages that can't be exceeded at trial – so it starts high. Personal injury lawyers usually work on contingency for about 25% of a settlement. They wouldn't want to start too low.

How about a woman who recently alleged the Newport Beach Police Department subjected her to verbal abuse with racial overtones and a humiliating physical search? She was apparently stopped for speeding and then arrested for an outstanding traffic warrant. Her attorney has filed a claim seeking up to $1 million in emotional damages.

Could this really be worth $1 million? Aitken answers:

"Your case is worth what it turns out by the evidence to be worth. Is she making too big a deal of it or did she suffer damage that entitles her to some compensation?"

Aitken would want to see evidence of her trauma that could come from doctors, counselors or friends. Was the event really minor or did it change her life? Has she lost enjoyment of her life?

"Jurors will want to give her incentive to pull her life back together again – but not to retire for life."

Well, how about Kobe Bryant's maid who is suing for emotional distress damages as part of wrongful termination?

First, Aitken points out that the amount of damage suffered by the maid shouldn't be based upon Kobe's celebrity. She didn't suffer more because he is rich – and the jury will be told so.

The wealthy, however, do make a more tempting legal target.

"They have the ability to respond. It doesn't change the value of the case; it changes the collectability."

Sadly, although the driver accused of the crash that killed Angels pitcher Nick Adenhart and two others faces criminal charges, there will probably not be a civil trial for damages.

"If you have limited insurance, you have no ability to respond to damages. In this case the damage could be tremendous – but the ability to respond is minuscule."

Bottom line: If you broke something, and you can pay, you have to fix it.

How do you put a value on quality of life?

I know my life is special. And in court that should darn well be worth something.